Toxic trial

Jonathan Harr talks about his heartbreaking legal
thriller

For four years we would meet periodically in US District
Judge Walter Jay Skinner's overheated courtroom, high above
Post Office Square. I was a reporter for the Woburn Daily
Times Chronicle, covering a seemingly endless legal case
involving toxic waste and dead children. He was a writer on
leave from New England Monthly, doing research for a
book: unfailingly polite, studious, and slightly preppy.

Between 1986 and '89, I wrote perhaps 200 articles about the
case, then put it behind me. But Jonathan Harr kept plugging
away, re-interviewing the principals, poring over the 27 linear
feet of transcripts, depositions, and legal filings that lined
the bookcases in his Northampton house, and commiserating with
his friend and neighbor Tracy Kidder.

"I regretted getting into this thing more times than I can
tell you," says Harr, 45, who used up his nearly six-figure
advance in 1988 and struggled in penury for years. He recalls
the advice Dan Okrent, then the editor of New England
Monthly, now a top editor at Sports Illustrated,
once gave him: "He told me, 'Don't do this book. You'll be
digging out quarters from behind the car seat.' And he was
right."

The result, though, was worth the wait. A Civil
Action (Random House, 492 pages, $25), to be published on
September 8, is a magnificent achievement, a nonfiction novel
of the first order. Though Harr never loses sight of the
Woburn
families who were stricken by illness and death, A Civil
Action is primarily a legal thriller. The star: Jan Richard
Schlichtmann, a young, brilliant, deeply flawed personal-injury
lawyer with a passion for social justice who thought the case
would establish him as one of the luminaries of his profession;
instead it left him bankrupt and spiritually broken.

A Civil Action has garnered blurbs from J. Anthony
Lukas ("wildly funny and unspeakably sad") and Kidder ("the
weight and range of a tragicomic epic").

The book set off a bidding war for the movie rights when it
was still in proofs. Last April, Harr sold the rights to Robert
Redford and Disney for $1.25 million, more than enough to allow
him to leave the car seats alone. Movie producers Fred Zollo
and Nick Paleologos (Mississippi Burning, Quiz Show),
who are from Woburn and who'd hoped to buy the rights
themselves, have vowed to make their own film about the
case.

With a first printing of 100,000 copies, Harr's book has
placed him on the brink of stardom.

Contaminated wells

In May 1979, state investigators discovered that two
municipal wells in Woburn were contaminated with industrial
solvents. Residents of the neighborhood served by those
15-year-old wells had long complained that the water was
malodorous and foul-tasting, and that it ruined their
clothes.

Later that year, the discovery of huge toxic-waste sites
fueled suspicions that local industries had polluted the wells.
And when researchers from the Harvard School of Public Health
learned that families who received most of their water from
those two wells suffered far more than the normal number of
leukemia cases and
immune-system disorders, Woburn entered the public
consciousness alongside Love Canal and Times Beach. Anne
Anderson, a Woburn mother whose son Jimmy died of leukemia, and
who goaded authorities into investigating the water, became a
national symbol of the fight against corporate
carelessness.

The US Environmental Protection Agency identified three
properties from which it believed most of the pollutants in the
wells had been drawn: a machine-tool plant operated by W.R.
Grace, then as now an international conglomerate; a vacant
15-acre site that was part of a tannery owned by Beatrice
Foods, another mega-corporation; and an industrial dry-cleaning
operation owned by UniFirst, a regular user of the one of the
solvents found in the wells.

Thus it was Grace, Beatrice, and UniFirst that Schlichtmann
sued on behalf of the eight Woburn families who retained him.
UniFirst settled quickly, paying $1.1 million. That sum was
immediately applied to the several million dollars' worth of
expenses Schlichtmann ran up during a pretrial discovery period
that, by Harr's account, can only be described as manic.

Schlichtmann made his first serious error on the eve of the
1986 trial, when he essentially walked away from negotiations
with Beatrice that seemed likely to result in a settlement of
$8 million. By forcing Beatrice into the courtroom,
Schlichtmann diluted his strong case against Grace with his
much weaker case against Beatrice, thus confusing the jury.
More important, he had to tangle with Beatrice's
extraordinarily able trial lawyer, Jerome
Facher, chief of litigation for the Boston law firm of Hale
and Dorr, an avuncular pit bull who chewed up and spat out one
after another of Schlichtmann's witnesses.

I winced as I read Harr's account of the breakdown in
settlement negotiations, wanting to reach into the book, cuff
Schlichtmann about the ears, and demand that he close the deal.
Harr, though, points out that even Judge Skinner had mused that
the case might be worth several hundred million dollars. In
light of that, the $8 million that Facher's associate Neil
Jacobs told Schlichtmann he would "try" to get Beatrice to
agree to must have looked like mere walking-around money.

"Jan was certainly a risk-taker," Harr says. "It's part of
what made him successful, and it's part of what made him
self-destructive, too."

The second serious error occurred about two-thirds of the
way through the 78-day trial, in May 1986. That's when George
Pinder, an eminent hydrogeologist from Princeton University
whom Schlichtmann had hired at great expense, ruined what was
left of the case against Beatrice.

Between the polluted wells and the 15-acre Beatrice property
flowed the Aberjona River, a small, muddy stream into which
chemical wastes had been dumped for more than a century.
Lawyers for Beatrice and Grace argued that the pollution in the
wells was more likely to have come from the river than from
their clients' properties. But Pinder believed they were wrong,
and asserted that the wells actually drew none of their water
from the river. It was a theory that defied common sense, not
to mention government test results that showed the water level
of the river dropped when the wells were turned on. Pinder
based his theory on a complex set of calculations concerning
the flow of underground water.

"I figured it out when I was taking a shower this morning,"
Harr records Pinder as telling Schlichtmann. "George,"
Schlichtmann replied, "don't say that on the witness stand." He
did. And he was wrong, which Facher saw immediately.
Schlichtmann himself went over the data that night and realized
Pinder had blown it. Pinder never admitted his error; instead,
his defended his absurd theory in the teeth of Facher's
brutally effective cross-examination. Judge Skinner mocked
Pinder's "morning-shower epiphany" and called Pinder "a
hopeless witness." Schlichtmann could only be thankful that the
jury was out of the room when Skinner made those remarks.

Federal investigators determined after the trial, too late
to help Schlichtmann, that even though the wells drew 40
percent of their water from the river, the chemical solvents at
issue in the trial were not present in the river water.
Instead, investigators found that one of the prime sources of
solvent contamination in the wells was, as Pinder had
testified, a plume of underground water flowing from the
Beatrice property.

"As it later turned out," Harr writes, "Pinder was generally
right." Well, no. To reporters, to courtroom observers, and,
most important, to Skinner, Pinder's error concerning the river
seemed not to be an honest, inconsequential mistake but rather
an outlandish theory cooked up to rebut the notion that the
Aberjona River, not Grace and Beatrice, was responsible for
polluting the wells. Harr vigorously disagrees with that
interpretation: "George Pinder was no whore. I think he's
honest as the day is long. I think he just made a mistake."

What a mistake. Ultimately the jury, to no one's surprise,
cleared Beatrice of wrongdoing. Skinner wrote that if the jury
hadn't dropped the case against Beatrice, he would have done so
himself, ruling that Pinder's testimony was "seriously flawed."
An appeals court upheld that ruling, casting a pall over
Schlichtmann's three-year, post-trial effort to show that
lawyers for Beatrice and for the previous tannery owner may
have improperly withheld evidence of chemical dumping. After
all, what good would it have done to show that the tannery had
polluted its own property if Schlichtmann, because of Pinder's
error, was legally prohibited from presenting evidence that the
contamination had reached the wells?

The jury did find Grace liable. Even Pinder's blunder
couldn't negate the overwhelming evidence against that company.
Schlichtmann, deeply in debt, settled out of court rather than
proceed to the second phase of the trial, when his clients
finally would have had a chance to testify about the illnesses
and deaths their families had suffered. The amount of the
settlement: $8 million, the same figure Schlichtmann presumably
could have gotten out of Beatrice before he ever stepped into
the courtroom. As a further indignity, Skinner, in announcing
the settlement, said he had discarded the verdict against Grace
because of technical problems with the way the jury had
responded to his overly complicated instructions.

Parallel crises

Schlichtmann would have had a hard time proving his case
even without these errors. Evidence that the chemicals at issue
could cause leukemia and other human illnesses was sketchy, and
would have been fiercely contested if the trial had
continued.

"I think it was an exceedingly difficult case," says Harr.
"Was it doomed? I don't know."

Harr's ordeal, in some ways paralleled Schlichtmann's. What
had started out as a three-year project dragged on for another
two, when the appeals finally ran their course. Harr then fell
into a crisis of his own, overwhelmed by the material he had
gathered. "It was very bleak in 1989, '90, and '91," he says.
By June 1994, he'd nearly completed the book, only to suffer
serious injuries in a bicycle accident, which cost him two
months at the computer. Now that it's finally over, he's
preparing for a five-city book tour, researching an article for
the New Yorker, and thinking about another book project.
"I hope it doesn't take me nine years," he says, laughing
ruefully.

As for Schlichtmann, he's returned to the Boston area to
practice law, an impressive comeback following a declaration of
bankruptcy and a move to Hawaii several years ago. "He seems to
be doing quite well," says Harr, although he adds: "I don't
know that he's fully recovered. He's not the same guy. He's
lost a step."

In the end, it wasn't greed that did Schlichtmann in, though
he was greedy. Nor was it arrogance, though he had more than
his share. Ironically, it was his passion for justice that was
his undoing. Without that passion, he never would have taken on
such an impossible case, and he never would have kept fighting
long after his law firm had gone broke, long after his partners
had begged him to stop. "Rich and famous and doing good,"
Schlichtmann muses at one point in the book. "Rich isn't so
difficult. Famous isn't so difficult. Rich and famous together
aren't difficult. Rich, famous, and doing good - now that's
very difficult."